Obama and the as­sas­sin’s creed

Ad­min­is­tra­tion falls short in jus­ti­fi­ca­tion for killing Amer­i­cans over­seas

The Washington Times Daily - - Opinion -

This week, At­tor­ney Gen­eral Eric H. Holder Jr. laid out the Obama ad­min­is­tra­tion’s ra­tio­nale for as­sas­si­nat­ing Amer­i­cans abroad. Cut­ting through the rhetoric, the ar­gu­ment still amounts to say­ing, “be­cause we can.”

Speak­ing to an au­di­ence at North­west­ern Univer­sity law school Mon­day, Mr. Holder re­vealed some of the pre­vi­ously se­cret ra­tio­nale for tar­geted killings of Amer­i­can cit­i­zens en­gaged in ter­ror­ism abroad. Mr. Holder said, cor­rectly, that rights un­der the Con­sti­tu­tion are not ab­stract and ab­so­lute, but their le­gal stand­ing is con­di­tioned by spe­cific cir­cum­stances. He pro­posed a means of bal­anc­ing the in­di­vid­ual’s right to due process un­der the Fifth Amend­ment against the gov­ern­ment’s re­spon­si­bil­ity “to pro­tect the in­no­cent peo­ple whose lives could be lost in [ter­ror­ist] at­tacks.” For a tar­geted killing to be le­gal un­der White House rules, it must ful­fill three con­di­tions: that “the in­di­vid­ual poses an im­mi­nent threat of vi­o­lent at­tack against the United States,” that “cap­ture is not fea­si­ble,” and that “the op­er­a­tion would be con­ducted in a man­ner con­sis­tent with ap­pli­ca­ble law of war prin­ci­ples.”

The third leg of the test is use­ful but not rel­e­vant to the con­sti­tu­tional ques­tion. The United States is ob­li­gated un­der in­ter­na­tional treaty to con­duct it­self in ac­cor­dance with the rules of armed con­flict. Mr. Holder is es­sen­tially say­ing that while con­duct­ing as­sas­si­na­tions, the ad­min­is­tra­tion will not ad­di­tion­ally com­mit war crimes.

The fea­si­bil­ity-of-cap­ture con­di­tion is purely util­i­tar­ian, vague and elas­tic. It is more a mat­ter of gov­ern­ment con­ve­nience than con­sti­tu­tional prin­ci­ple. It should not be used as a jus­ti­fi­ca­tion for state-sanc­tioned killing any more than a po­lice­man could as­sert that be­cause he deemed it in­fea­si­ble to cap­ture a flee­ing un­armed sus­pect, he sim­ply shot the sus­pect in the back.

The first leg is the most salient and stands on the rec­og­nized prin­ci­ple that the ex­ec­u­tive has the power to use pre-emp­tive lethal force in times of ur­gent need. How­ever, the Amer­i­can tar­gets of the Obama ad­min­is­tra­tion’s as­sas­si­na­tion pro­gram did not pose an im­mi­nent threat of vi­o­lence. None was killed in the process of con­duct­ing at­tacks or en­gag­ing in any threat­en­ing be­hav­ior. Stretch­ing the ra­tio­nale for this type of ex­ec­u­tive ac­tion to the point where it can jus­tify killing An­war al-awlaki while he was out for a drive in the coun­try is a dan­ger­ous slip­pery slope.

Most trou­bling, and cer­tainly fa­tal to the ad­min­is­tra­tion ar­gu­ment, is Mr. Holder’s as­ser­tion that the decision to kill Amer­i­cans abroad rests solely with the ex­ec­u­tive branch and re­quires no ju­di­cial ac­tion or over­sight. Mr. Holder as­serted that it would be im­prac­ti­cal to get judges in­volved in op­er­a­tions that re­quire “real-time de­ci­sions,” which “de­pend on ex­per­tise and im­me­di­ate ac­cess to in­for­ma­tion that only the ex­ec­u­tive branch may pos­sess.” But this di­rectly con­tra­dicts a re­quire­ment es­tab­lished in the first part of Mr. Holder’s bal­anc­ing test for a “thor­ough and care­ful re­view” be­fore some­one is placed on the as­sas­si­na­tion list. Mr. Holder con­fuses the tac­ti­cal re­quire­ments of the killing it­self with the due process lead­ing to the au­tho­riza­tion for ex­ec­u­tive ac­tion. If there is time to build a solid case to kill some­one, there’s time to see a judge. If there’s no time to see a judge, the case can­not be strong enough to war­rant as­sas­si­na­tion.

Mr. Holder ar­gues for a trou­bling ex­pan­sion of ex­ec­u­tive power, an unchecked in­fringe­ment on due-process rights based chiefly on ex­pe­di­ency, with wor­ry­ing im­pli­ca­tions for its do­mes­tic ap­pli­ca­tion. A more fruit­ful, less dan­ger­ous ap­proach would be to make the case that peo­ple en­gaged in anti-u.s. ter­ror­ist ac­tiv­ity abroad no longer con­sider them­selves Amer­i­cans. Through words and deeds, they have re­lin­quished their cit­i­zen­ship. This would re­quire no ex­pan­sion of the gov­ern­ment’s pow­ers and would not dis­card the Con­sti­tu­tion for Mr. Obama’s lethal con­ve­nience.

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